Breach of Contract in Virginia
The elements of a breach of contract action are (1) a legally enforceable obligation of a defendant to a plaintiff; (2) the defendant's violation or breach of that obligation; and (3) injury or damage to the plaintiff caused by the breach of obligation. Accordingly, the plaintiff must allege facts setting forth the injury or damage incurred as a result of defendant's breach. (holding plaintiff sufficiently alleged damages resulting from foreclosure sale conducted in breach of deed of trust based on lender's failure to conduct face-to-face meeting required by HUD regulation). Ramos v. Wells Fargo Bank, NA, 289 Va. 321, 323, 770 S.E.2d 491, 493 (2015).
As a general rule, damages for breach of contracts are limited to the pecuniary loss sustained. Sunrise Continuing Care, LLC v. Wright, 277 Va. 148, 156, 671 S.E.2d 132, 136 (2009) (quoting Kamlar Corp. v. Haley, 224 Va. 699, 705, 299 S.E.2d 514, 517 (1983)). Generally, the measure of damages recoverable by the seller for the buyer's breach of contract is the difference between the price agreed to be paid and the market value of the property. “MCR Fed., LLC v. JB&A, Inc., 294 Va. 446, 462, 808 S.E.2d 186, 195 (2017) Proof of damages is an essential element of a breach of contract claim, and failure to prove that element warrants dismissal of the claim. Sunrise, 277 Va. at 156, 671 S.E.2d at 136; Filak v. George, 267 Va. 612, 620, 594 S.E.2d 610, 614 (2004).
In a breach of contract action, the plaintiff bears “the "burden of proving with reasonable certainty the amount of damages and the cause from which they resulted; speculation and conjecture cannot form the basis of the recovery." Shepherd v. Davis, 265 Va. 108, 125, 574 S.E.2d 514, 524 (2003) (quoting Carr v. Citizens Bank & Trust Co., 228 Va. 644, 652, 325 S.E.2d 86, 90 (1985)); see also SunTrust Bank v. Farrar, 277 Va. 546, 555, 675 S.E.2d 187, 191 (2009) ("damage calculations based on unsupported projections are improper"). "[E]xpert testimony . . . cannot be speculative or founded upon assumptions that have an insufficient factual basis." Blue Ridge Serv. Corp., 271 Va. at 213, 624 S.E.2d at 59 (quoting Tittsworth v. Robinson, 252 Va. 151, 154, 475 S.E.2d 261, 263 (1996)).
However, a plaintiff need not establish the specific amount of the loss or damage with absolute certainty. When it is certain that substantial damage has been caused by the breach of a contract, and the uncertainty is not whether there have been damages, but only an uncertainty as to their true amount, then there can rarely be any good reason for refusing all damages due to the breach merely because of that uncertainty. Condo. Servs. v. First Owners' Ass'n of Forty Six Hundred Condo., Inc., 281 Va. 561, 577-78, 709 S.E.2d 163, 173 (2011). “Proof of absolute certainty as to the amount of loss or damage is not essential when the existence of loss is established and the facts and circumstances proven are such as to permit of intelligent and probable estimate of the amount of damage or loss sustained.” E. I. Du Pont Nemours & Co. v. Universal Moulded Prods. Corp., 191 Va. 525, 572-73, 62 S.E.2d 233, 255 (1950); see generally Condo. Servs., 281 Va. at 577-78, 709 S.E.2d at 173.
Sean Griffin litigates breach of contract actions in Virginia, Maryland, and the District of Columbia. He may be reached by email at sgriffin@dykema.com or by phone at (202) 906-8703.